OK, so what is the Antiquities Act?
The Antiquities Act (Pub.L. 59–209, 34 Stat. 225, 54 U.S.C. § 320301–320303 for all you hardcore civics nerds) is a law passed by Congress and signed by Theodore Roosevelt in 1906. Generally, it gives the President the authority to create National Monuments at their discretion via public proclamation, provided those Monuments are comprised of land already managed by the federal government (i.e. no National Monuments are ever “federal land grabs.”) The Monuments are created to protect and preserve “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest,” and the President is instructed to proclaim only “the smallest area compatible with proper care and management of the objects to be protected” as a Monument.
In addition to creating a new National Monument, the Antiquities Act can also be used to expand an existing Monument.
I thought this was all about land grabs, though.
Nope. That’s just meaningless rhetoric. Lands declared National Monuments can only be formed by land already owned by the federal government, but unfortunately “federal land use redesignation and potential administrative shift” doesn’t have quite the sexy ring as “federal land grab,” does it?
Wait – why doesn’t Congress get to make National Monuments?
Congress can make National Monuments, too – they just have to pass a law naming one.
Then why does the President get to just name Monuments without Congressional approval?
Hi, have you met Congress? They’re really good at taking a looooong time to do things.
As early as the 1880s, activists, archaeologists, scholars, and preservationists were petitioning Congress to do something to protect the Native American archeological sites in the Southwest, which were basically free-for-all open-looting sites for smugglers, curio-collectors, and anyone else who knew where to look. In 1882, Massachusetts Republican Senator George Hoar introduced a petition to Congress to protect sites in what are now Arizona and New Mexico. The petition went nowhere.
Hoar introduced another petition in 1889, this time specifically calling out vandalism damage to Casa Grande. Congress appropriated funds in a budget and the following year, Republican President Benjamin Harrison protected the site and 480 acres surrounding it for their archaeological value via executive order (the first time land was preserved for such a reason). A well-known conservationist and future inspirational figure for Teddy Roosevelt, Harrison also used executive orders to create the Afognak Island Forest and Fish Culture Reserve in Alaska to protect salmon – often considered the first true wildlife reserve, along with promoting and signing the Forest Reserve Act of 1891 (which created the precursor to the Forest Service) and pushing early bills to create a National Park at the Grand Canyon.
OK – but back to Congress. While they were all busy debating things and coming up with questionable reasons to declare war on Spain, sites all over the West like Mesa Verde and the Petrified Forest continued to be looted or threatened by industries.
The idea of the Antiquities Act was born after Iowa’s extremely conservative Republican Congressman John F. Lacey — then Chairman of the Committee on Public Lands — took a tour of archeological sites in the Southwest and saw the effects of Congressional inaction first-hand.
Lacey was no slouch in the law enforcement field — the Lacey Act of 1894 gave rangers in Yellowstone National Park the ability to enforce laws inside the park (an ability that soon-to-be-early-retired Congressman Jason Chaffetz wants to remove with HR 622) and the Lacey Act of 1900 established penalties for poaching and prohibited trading wildlife, plants, or fish that were illegally taken, possessed, transported, or sold. The Lacey Act is still used extensively to punish poachers today. So in 1906, Lacey introduced the Antiquities Act to allow the President to act to protect landscapes in the nation’s best interest when Congress couldn’t or wouldn’t step in.
Has the Antiquities Act ever caused controversy?
Oh yes, early and often.
The Act’s ambiguous text provides lots of wiggle room both for Executives who wish to use it and for groups who wish to oppose it — because how can you really determine the “smallest area compatible with proper care and management,” or what constitutes “objects of historic or scientific interest,” or even what an “object” is? In the past, courts — including the Supreme Court — have consistently ruled in favor of the President’s discretion in determining the “smallest area,” and have established over the years a widening range of objects worthy of protection.
The Act has been a large and pointy thorn in the sides of people who want less federal control or interference in their activities, which sometimes include certain types of recreating or access and sometimes include people who are keen on blowing up parts of the landscape to pull minerals out of the ground. One of the first places Teddy Roosevelt used the Act was at the Grand Canyon, where he was met almost immediately with resistance and pushback from the mining industry. Today, a contingent known as the “Anti-Parks Caucus” seems mostly keen on stripping back regulations from public lands to make it easier for extractive industries to have access — even inside National Parks.
Further Reading: this article from Sierra Magazine details several instances of National Monuments that met with heavy resistance only to become much-beloved in later years.
There is a popular perception that once land is declared a National Monument, it’s essentially locked up permanently and all previous recreational or profit-generating activities are banned — but this is not the case. While some National Monuments are essentially managed like junior National Park units, many others are managed in different ways to fit the needs and desires of the surrounding communities. In the case of the San Gabriel Mountains National Monument, the designation kicked off a multi-year, highly-inclusive land management outreach process, where a wide variety of stakeholders and interested parties were brought to the table to make the new management plan as inclusive as possible. Despite dire warnings to the contrary, you can still take your dog on a hike, ride mountain bikes and off-road vehicles, shoot guns, run businesses, lease cabins, operate ski lifts and quarries, and run power lines (and potentially high-speed rail) inside the new National Monument.
What has the Antiquities Act given us?
Since 1906, 16 Presidents have designated 157 different National Monuments. Some have become National Parks, some have been merged into other parks, and some have been donated to states as parks or just reincorporated into National Forests.
A few of the National Parks we enjoy that got their start as Presidentially-designated National Monuments. They are:
- Petrified Forest
- Lassen Volcanic
- Grand Canyon
- Great Basin
- Bryce Canyon
- Carlsbad Caverns
- Great Sand Dunes
- Death Valley
- Black Canyon of the Gunnison
- Dry Tortugas
- Joshua Tree
- Capitol Reef
- Channel Islands
- Grand Teton
- Kenai Fjords
- Kobuk Valley
- Lake Clark
- Wrangall-St. Elias
A full list can be found on the National Parks Conservation Association’s site.
It is interesting to note that although the most rabidly anti-Antiquities Act Congressional delegation is from the State of Utah, four of the state’s heavily promoted tourist destinations known as the Mighty Five National Parks got their start from the Act. So I’ll just note that.
Have these designations ever been overturned?
No, but Monuments have been reduced in size, eliminated, returned to states or restricted in the future via legislation and legal decisions.
When Democratic President Franklin Delano Roosevelt created Jackson Hole National Monument in 1943, there was extremely heavy local resistance in Wyoming. When Congress passed a law undoing the Monument and Roosevelt vetoed it, he proooobably didn’t win over any more locals either. In 1950, legislation merged most of Jackson Hole into Grand Teton National Park and modified the Antiquities Act to exclude the State of Wyoming from future Monument designations. At the height of the controversy, armed ranchers led by a Hollywood actor who summered near Jackson Hole even drove 550 yearlings across the National Monument, attempting to bait the Park Service into a violent response in an attempt to dissolve the Monument (sound familiar?).
Similarly, after Democratic President Jimmy Carter used the Act to create 56 million acres of new National Monuments in Alaska, Congress dragged out a legislative compromise that protected much of the land but also specified that future designations of Monuments in Alaska larger than 5,000 acres would require Congressional approval.
Occasionally, Monuments have been transferred to their states as state or local parks, redesignated as wildlife preserves, or reincorporated into the previous land manager’s agency, with varying degrees of success. If you want to go down a fun side trip, the National Parks Traveler has an excellent list of abolished National Parks and Monuments – just note that not all of the Monuments listed there were created by Antiquities Act decree.
Why is a law from 1906 in the news?
Because news just leaked that President Trump is instructing new Secretary of the Interior Ryan Zinke to review all National Monument Designations over the past 21 years, ostensibly to see whether any “abuses” of the Antiquities Act took place. That timeline just so happens to capture both the new Bears Ears National Monument and the 1996 Grand Staircase-Escalante National Monument, both of which Utah legislators have been keen to overturn to trade in visitor centers and hiking trails for extractive industries and ranching access. Reversal of Monument status of California’s Mojave Trails National Monument could also make it easier for the controversial Cadiz Water Project to move forward, which would deplete aquifers beneath the Mojave Desert to send water to urban Southern California.
The full list of Monuments “under review” follows:
- Grand Staircase-Escalante National Monument, Utah
- Agua Fria National Monument, Arizona
- California Coastal National Monument, California
- Grand Canyon-Parashant National Monument, Arizona
- Portion of Sequoia National Forest (originally Giant Sequoia)
- Canyon of the Ancients National Monument, Colorado
- Cascade-Siskiyou National Monument, Oregon
- Hanford Reach National Monument, Washington
- Ironwood Forest National Monument, Arizona
- President Lincoln and Soldier’s Home National Monument, Washington, DC
- Vermillion Cliffs National Monument, Arizona
- Carrizo Plain National Monument, California
- Kasha-Katuwe Tent Rocks National Monument
- Minidoka National Historic Site, Idaho
- Pompeys Pillar National Monument, Montana
- Sonoran Desert National Monument, Arizona
- Upper Missouri River Breaks National Monument, Montana
- Virgin Islands Coral Reef National Monument, Virgin Islands
- Governors Island National Monument, New York
- African Burial Ground National Monument, New York
- Papahānaumokuākea Marine National Monument (originally Northwestern Hawaiian Islands), Hawaii
- World War II Valor in the Pacific National Monument, Hawaii
- Rose Atoll National Monument, American Samoa
- Pacific Remote Islands National Monument, Hawaii
- Mariana’s Trench National Monument, Northern Mariana Islands, Guam
- Fort Monroe National Monument, Virginia
- Fort Ord National Monument, California
- Chimney Rock National Monument, Colorado
- Cesar E. Chavez National Monument, California
- San Juan Islands National Monument, Washington
- Rio Grande del Norte National Monument, New Mexico
- Harriet Tubman Underground Railroad National Historical Park, Maryland
- First State National Historical Park, Delaware
- Charles Young Buffalo Soldiers Monument, Ohio
- Organ Mountains-Desert Peaks National Monument, New Mexico
- San Gabriel Mountains National Monument, California
- Honouliuli National Monument, Hawaii
- Pullman National Monument, Illinois
- Browns Canyon National Monument, Colorado
- Berryessa Snow Mountain National Monument, California
- Waco Mammoth National Monument, Texas
- Basin and Range National Monument, Nevada
- Mojave Trails National Monument, California
- Sand to Snow National Monument, California
- Castle Mountains National Monument, California
- Belmont-Paul Women’s Equality National Monument, Washington, DC
- Stonewall National Monument, New York
- Katahdin Woods and Waters National Monument, Maine
- Northeast Canyons and Seamounts Marine National Monument, Massachusetts
- Bears Ears National Monument, Utah
- Gold Butte National Monument, Nevada
- Birmingham Civil Rights National Monument, Alabama
- Freedom Riders National Monument, Alabama
- Reconstruction Era National Monument, South Carolina
If a President can make a Monument, can’t a President un-make a Monument?
Well we’ll all find out soon, won’t we?
Right now, though, it looks like it would be a pretty steep uphill legal battle, as there is absolutely nothing in the text of the Antiquities Act that provides the President with the power to undo a previous designation — and remember that these guys are all originalists who believe written laws are only to be enforced exactly as they’re written, right?
However, this opinion is extremely tentative because there hasn’t yet been any firm judicial decision on this issue. In fact, to find anything that even approaches a guideline, you have to go back to a 1938 Attorney General opinion that concluded the Antiquities Act does not give a president the authority to revoke a previous proclamation.
In a piece of faculty research from Brigham Young University on this subject, professor James R. Rasband writes that although that 1938 opinion may be of limited legal value, legal scholars can look at legislation from that time period to find other examples where Congress did explicitly provide the ability to revoke designations, which would strongly imply that Congress did not intend the Antiquities Act designations to be negated by future Presidents. He writes:
“In several other turn-of-the-century statutes delegating withdrawal power to the president, Congress specifically included a provision allowing the president or the secretary of the interior to revoke a prior withdrawal. For example, the Act of June 25, 1910, commonly known as the Pickett Act, gave the president authority to “temporarily” withdraw public lands but also provided that those withdrawals were to “remain in force until revoked by him or an Act of Congress.” Similar revocation provisions exist in the Carey Act of 1894, and the Reclamation Act of 1902. If Congress understood the authority to withdraw to contain the implied authority to revoke, the revocation permission in the Pickett Act and these other statutes would have been mere surplusage. The language of these acts indicates that Congress knew what to say if it wanted to give the president authority to revoke one of his own withdrawals, and it did not say it in the Antiquities Act.
Most legal scholars seem to agree that a President does not have the power to undo an existing Monument by decree or executive order … but Congress can.
Give me some historical perspective on the future of this thing.
In general, even where Monument designations meet very strong resistance, over time the communities come to see them not as a burden, but a boon to their economies and well-being. When President Bill Clinton proclaimed Grand Staircase-Escalante in 1996, Utahns were — to put it mildly — extremely upset. But at the 20th anniversary of the designation last year, even though some locals are still upset the Monument prevented a coal mine from being built, two separate polls found Utahns approve of the Monument by a 2:1 margin. An earlier poll from 2011 found 62% of locals found the Monument to be an economic benefit to the region, and showy but toothless state bills to overturn or shrink Escalante and Bears Ears have met with fierce resistance from voters.
And remember that armed cattle drive in Jackson Hole? One of the people who joined in on the protest ride was a rancher named Cliff Hansen. He later became the Governor of Wyoming and one of its Senators. At a luncheon in 1967 when he was asked about his opposition to the Monument’s expansion, he said “I want you all to know that I’m glad I lost, because I now know I was wrong. Grand Teton National Park is one of the greatest natural heritages of Wyoming and the nation and one of our great assets.”
Just for kicks, we’ll leave with a choice paragraph from Theodore Roosevelt’s “New Nationalism” speech, which despite being written in 1910 is still prescient today:
Moreover, I believe that the natural resources must be used for the benefit of all our people, and not monopolized for the benefit of the few, and here again is another case in which I am accused of taking a revolutionary attitude. People forget now that one hundred years ago there were public men of good character who advocated the nation selling its public lands in great quantities, so that the nation could get the most money out of it, and giving it to the men who could cultivate it for their own uses. We took the proper democratic ground that the land should be granted in small sections to the men who were actually to till it and live on it. Now, with the water power, with the forests, with the mines, we are brought face to face with the fact that there are many people who will go with us in conserving the resources only if they are to be allowed to exploit them for their benefit. That is one of the fundamental reasons why the special interests should be driven out of politics. Of all the questions which can come before this nation, short of the actual preservation of its existence in a great war, there is none which compares in importance with the great central task of leaving this land even a better land for our descendants than it is for us, and training them into a better race to inhabit the land and pass it on. Conservation is a great moral issue, for it involves the patriotic duty of insuring the safety and continuance of the nation. Let me add that the health and vitality of our people are at least as well worth conserving as their forests, waters, lands, and minerals, and in this great work the national government must bear a most important part.
For more fact-checking on this recent attack on the Antiquities Act, High Country News has put together an excellent list of popular myths surrounding the National Monuments under question.
Tags: antiquities act, donald trump, national monuments, Politics, protest, public lands, sagebrush rebellion